Who is fudging? (Answer: not the EU.)

There has been a lot of talk since yesterday’s deal pointing out that there has been a certain amount of fudging going on. But there is fudge and fudge, and it’s helpful to be clear about what’s being fudged and by whom.

Paragraph 49 states:

“The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s objective is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and Customs Union which, now or in the future, support North-South cooperation, the all-island economy, and the protection of the 1998 Agreement.”

These are commitments made by the UK to the EU and there is very little fudge here. The UK is committing as a backstop solution to the full alignment needed to “support North-South cooperation, the all-island economy, and the protection of the 1998 Agreement” in the context of an over-arching commitment to avoid a hard border. Avoiding a hard border requires full alignment for all traded goods. North-South cooperation involves the famous 142 areas of North-South cooperation we have been hearing about, and brings services like health into the mix. The all-island economy is even broader. And the Good Friday Agreement brings things like human rights into the mix.

Paragraph 50 states that:

“In the absence of agreed solutions, as set out in the previous paragraph , the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”

Notice anything? These are not commitments made by the EU. These are, once again, commitments made by the UK, in this instance to the DUP.

Paragraphs 49+50 appear to be a bit of a fudge, although the fudge can be undone by the entire UK maintaining full alignment with the EU. But let’s be clear: this is the UK fudging, not the EU, and the UK needs to fudge at this stage because of the internal contradictions of its own position. But the EU will naturally take the view that the UK must meet its commitments made to the EU in Paragraph 49. There is no fudge here: the EU has sought and obtained an impressive series of concessions from the UK, and the UK will be held to its word.

Note also that Paragraph 45 states that:

“The United Kingdom respects Ireland’s ongoing membership of the European Union and all of the corresponding rights and obligations that entails, in particular Ireland’s place in the Internal Market and the Customs Union. The United Kingdom also recalls its commitment to preserving the integrity of its internal market and Northern Ireland’s place within it, as the United Kingdom leaves the European Union’s Internal Market and Customs Union.”

These are again UK commitments, and the first of these is in the present context a commitment to respect the fact that the EU needs to police the external frontiers of its Internal Market and Customs Union. So the turning-a-blind-eye-to-smuggling non-solution is out.

And finally, note that Paragraph 46 states that:

“The commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the European Union and the United Kingdom and are, as necessary, specific to the unique circumstances on the island of Ireland. They are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom.”

The first sentence rules out the Brexiteers’ Baldrick-like cunning plan to use whatever special arrangements may be reached on the island of Ireland as precedents, allowing them to have their cake and eat it when it comes to the economic relationship between Great Britain and the European Union. And the second sentence commits the UK to uphold its engagements on Ireland in all circumstances.

As I say, it doesn’t seem to me as though the EU allowed much fudging when it came to the UK’s commitments to the EU regarding Ireland.

How Her Majesty’s Government simultaneously manages to meet its Paragraph 49 obligations to the EU, and its Paragraph 50 obligations to the DUP, taking account of inter alia Paragraphs 45 and 46, is something it will have to figure out. The UK government clearly ought to fulfil its commitments to the DUP, but whether it does so or not is hardly a primary concern of the EU. Paragraph 49 is what the EU will care about, not Paragraph 50. (Although Ireland would be very happy if the UK met both obligations in the only way that seems possible, namely by effectively staying in a Single Market and Customs Union type of arrangement with the EU.) If the UK wants to leave the EU in a civilised and amical manner, and strike a trade deal with the EU in the future, it will have to uphold the very clear commitments it has made to the EU. How the British deal with British fudge — whether Mrs May betrays the DUP, or abandons her previous red lines regarding membership of a customs union and the Single Market —  is a matter for them. But sooner or later they are going to be forced to confront and deal with the internal contradictions of their position.

More on the Article 50 process

Kevin’s article in the Irish Times is excellent. In the post below I make some of the same points and some others.

The farce on Monday highlighted Theresa May’s political weakness. It has also, yet again, revealed that many of the Brexiteers (and also many commentators) simply do not understand what is going on.

Various UK commentators and politicians have called on the EU to compromise. For example the BBC reported that “David Davis has said the EU must be willing to give ground too if further progress in Brexit talks is to be made.” This seems to stem from a belief that the so called phase 1 ‘negotiations’ are conducted in the usual way of political negotiations, where each side gives in a little, and in the end some clever form of words is found whereby each side can claim they got their way. This is simply not the case here.

The Article 50 process is about establishing what the UK is going to do regarding their financial liabilities, citizens rights (here the UK will also want to establish what the EU intends to do), whether a hard border on the island of Ireland will be necessitated by the future actions of the UK and whether the Good Friday Agreement, an internationally binding agreement can be maintained.

It is important to remember that it is the UK that wants to deviate from the status quo, so it is up to the UK to spell out in detail what it wants to change. The EU will determine if this is satisfactory for them to move to phase 2 where the future relationship between the UK and the EU will be negotiated.

Determining whether the UK proposals on these Article 50 issues are satisfactory is a technical matter not a political one. Either regulations in the UK (or Northern Ireland) will differ or they won’t, either the UK will end up agreeing to tariffs with third countries that deviate from those in the Customs Union or they don’t. If the UK wants to move in a direction where an open border would undermine the integrity of the EU Single Market and Customs Union, then border controls will be necessary.

Whatever is agreed will need to stand up to legal challenge, e.g. when the first lorry load of chlorinated chicken or beef that entered the UK at lower tariffs than are due in the EU, rolls across the border – so some clever form of words won’t do. There can be no compromise or a la carte approach here.

What can be offered to ease some of the unfounded DUP fears, are assurances regarding the status of Northern Ireland as a part of the UK (unless of course, as is provided for in the Good Friday Agreement, a majority decide to change that).

The plea for some give from the EU side reveals another misconception among Brexiteers and that is that the UK is an equal partner in this. Instead it is by a long way the junior partner in the process.

The latest World Bank World Development Indicators shows that the UK is the 6th largest economy in the world. It slipped a place, at least in part due to Brexit, making France the 5th largest economy, but importantly the EU excluding the UK is almost six times larger than the UK in economic terms. The potential losses of a failure to agree a trade deal are also considerably more significant for the UK than the EU – over four and a half times those suffered by the EU (based on Lawless and Morgenroth, 2016, I also have estimates that put this seven times). Of course Ireland is something of an outlier but even here the impact on total trade is less than half that potentially suffered by the UK.

This coupled with the fact that the EU is the UKs largest trading partner, means that walking away from the process is a strategy that would maximise the self-harm to the UK economy, as this would mean that the UK will not get a trade deal with the EU. Of course a trade deal with the EU would be the quickest one to put in place and of course it would also cover the largest share of UK trade so it is also the most important one.

Brexit and the Irish border

As we get closer to the important EU Council meeting the amount of coverage on Brexit has increased significantly. Of course more noise does not necessarily equate to more content – there is a lot of uninformed opinion around.

There are some fundamental issues that need to be understood.

While we are talking about the border between Ireland and Northern Ireland, we are also talking about a future external border of the EU. That means the issue of the Irish border is very important to the EU and our EU partners and all have the same objectives – to avoid a hard border. Thus, the negative commentary directed at Ireland by Brexiteers and the Brexiteer press, apart from being mostly factually wrong, is badly misdirected.

Of course the impact of a hard border would be felt more by Ireland than in any other Member State (you can find analysis on this here), but the nature of the border is a crucial determinant of the integrity of EU Customs Union and Single Market, and is thus of crucial importance to the EU. This latter point appears not be understood by everyone. To illustrate the significance of the EU external border, and the Irish border will be that post Brexit, it is useful to consider an example:

The UK wants to sign trade deals with other countries, which presumably will give other countries access to the UK market on different terms than are available in the EU. This is why the UK wants to leave the Customs Union. If the UK allows beef from a third country into the UK at a lower tariff than the EU would charge and/or subject to less regulation than applies in the EU (as part of a trade deal), then this beef could enter the EU if there is no hard border. Of course with lower tariffs in the UK than in the EU exporters would move their product through the UK (Northern Ireland) into the EU.

This would mean that the UK would effectively determine EU external trade policy. The EU will not allow such a situation to arise – and neither should Ireland as such a situation is likely to have significant negative impact on Irish businesses and consumers (remember the regulations are there to protect consumers).

This means that the apparent offer by the UK, that there will be no regulatory divergence at least for Northern Ireland, will not avoid the need for a hard border as the issue of different tariffs is not covered by that offer. A hard border will only be avoided if the UK, or at least Northern Ireland, stay in the Customs Union and there is no regulatory divergence – there is no way around this! An offer to avoid regulatory divergence is not enough to move to the next phase of the negotiations.

Even a special status for Northern Ireland, where the border runs through the Irish Sea and where UK authorities ensure that third country products do not end up in the EU market, is problematic as it would be difficult for the EU to enforce the proper policing of that border, given that it is located outside the EU in a sovereign country.

Another important point relates to opinions about the use of existing or yet to be invented technological solution to police the border. A lot of the legitimate routine trade is already processed electronically, and could easily continue to be processed that way. But that does not remove the need to check that what is being transported is what had been declared, and more importantly border checkpoints are there to stop illegal activity. It is hardly credible that criminals are going to be declaring their trade via an online system!? Importantly, once the UK is outside the Customs Union illegal activity will not only encompass the usual things like drug smuggling but will also encompass shipments where the tariffs and duties due in the EU have not been paid or where the goods do not meet EU regulatory requirements. In the event that the UK is outside the Customs Union (tariffs) and Single Market (regulations), Ireland is obliged to police this border adequately, which means physical checks.

This brings me to my next point. It would be very easy for the UK to guarantee that it will not introduce physical border checks, but given the arguments I put forward above, what the UK would needs to guarantee is that the EU will not need to put in physical border check in response to changes introduced by the UK in the wake of Brexit, namely deviations from regulations, tariffs and tariff-quotas.

Finally, there is talk about some form of words being found that would allow negotiations to progress to the next phase. Again given the facts, what is needed are very concrete undertakings that would be legally binding and would avoid the need for a hard border i.e. that the UK will not leave the Customs Union and there will be no regulatory divergence. Without such undertakings the negations should not proceed to phase two. Importantly, this is the point where Ireland holds all the cards, and it would be great mistake to settle for anything less than such an undertaking.

Journées de l’Economie

I was at the Journées de l’économie in Lyon last week: this is a popular economics festival at which literally thousands of members of the public show up to listen to people like yours truly.

I was on a Brexit panel on the Wednesday, and tried to explain to a French audience how serious the issue is for us (I start about 30 minutes in, but the whole thing is worth listening to; I thought Jon Henley in particular, who preceded me, was really excellent and made all the points you would have wanted to make yourself); there was a more academic session on a very French topic (“Mutations du capitalisme“) on the Thursday,  at which Daniel Cohen made a couple of points that I thought were very thought-provoking (and also very French).

What if it was the Europeans picking the cherries?

Outside the UK, where words apparently mean whatever you want them to, it is universally understood that in order to avoid a border on the island of Ireland, Northern Ireland (and preferably the UK as a whole) needs to stay in an equivalent of the existing EU customs union, and the European Single Market. Inside the UK, on the other hand, it seems to be commonly accepted that the UK needs to leave the Single Market because it has to restrict freedom of movement.(An argument that I have never accepted, but that is another matter.)

And so we have a problem.

In fact, however, the only bit of the European Single Market that the UK really has to stay in to avoid a border is the single market for goods — this would of course require it to apply European goods standards, accept all relevant ECJ rulings, and so forth.

Quite properly, the EU is ruling out cherry picking: the UK cannot stay in the bits of the Single Market it likes, and not in others. But what if it were ourselves, rather than the British, who picked the cherries?

In particular: it would be completely unacceptable for the UK to remain in the single markets for capital and services, while excluding itself from the single market for labour. This is, we all understand, never going to happen. And I suspect that they wouldn’t be allowed to remain in the single market for goods alone, either, and that proposing this is therefore a non-starter.

But I’m going to propose it anyway, in the full knowledge that I will be (probably quite properly) shot down, since it seems to have a few things going for it.

First, we would avoid borders, not just within Ireland but more generally, and this would help businesses across the continent. Supply chains would be unaffected, and so forth.

Second, the British would not have cherry picked — something that we could never allow a mere third country to do. We Europeans would have done the picking, on the grounds that it suited us to do so; and that seems to me like an important distinction.

Third, however, the Brexiteers would be able to say to their voters that they had restricted freedom of movement.

Fourth, however, this deal would only be made available on the basis that the UK also stayed in a customs union with the EU, since that would be required to avoid borders, which is the whole purpose of the exercise. So EU politicians would be able to point out, to their own populations, that the UK (a) was unable to do its own trade deals with other countries (b) had to accept the jurisdiction of the ECJ or an equivalent, such as the EFTA court, as it affects the single market for goods (c) had been unable to cherry pick as it saw fit.

Fifth, everyone could explain to their electorates that they had had to make these compromises in order to help preserve peace in Ireland.

Sixth, Ireland would avoid a border.

This would not be a great deal for the UK. Yes, they would get the frictionless trade that they say they want, and that they can’t get outside the Single Market and a customs union with the EU. They would keep their car industry, remain in Airbus supply chains, and all the rest of it. And that ought to be something that they would welcome. But: they would lose access to the single markets for services and capital, as long as they remained outside the single market for labour. They would lose jobs and tax revenue from the City. As a service economy, this is not the deal that they would have chosen: the UK would not be better off outside the EU than it is at present. But such a deal would be a lot better for them than the rather shallow, goods-only, friction-creating FTA arrangement that the UK seems to be heading for right now (if it gets even that). And they would always have the option of going for a deeper arrangement involving all four freedoms, if they decided that that is what they wanted at a later date.